Bernstein on Lochner

A Reasononline article examines why conservative critics have failed to attack law professor Cass Sunstein's dislike of Lochner v. New York (1905), pointing out that judicial conservatives are less worried about restricting state regulatory power than they are of the Court protecting unenumerated rights. Sunstein's confirmation as head of the Office of Information and Regulatory Affairs came last week after a barrage of criticism aimed at portraying him as a radical.

Mason Law Professor David Bernstein's scholarship on Lochner is cited in the article, with an observation that the mainstream version of Lochner, which pits bosses against exploited workers, does not resemble the historical evidence in the case, which actually depicts a struggle between unionized and non-unionized bakery workers.

Bernstein points out that "a ten-hour day law would not only aid those unionized workers who had not successfully demanded that their hours be reduced, but would also help reduce competition from nonunionized members." 

Lochner and Liberty, Reasononline, September 18, 2009. By Damon W. Root.


"Too busy making outlandish claims about his positions on gun control and radio censorship, Sunstein's conservative critics have ignored one of the biggest problems that his ideas pose to limited constitutional government. Sunstein is one of the most influential modern critics of Lochner v. New York (1905), perhaps the Supreme Court's most famous decision defending economic liberty. So why aren't conservatives going after Sunstein for his opposition to this case? Because many of them don't like Lochner either.

"At issue in the case was a provision capping working hours in New York's 1895 Bakeshop Act, which banned bakery employees from working more than 10 hours per day or 60 hours per week. In its 5-4 decision, the Court nullified this provision for violating the liberty of contract secured by the Due Process Clause of the 14th Amendment.

"In his 1987 Columbia Law Review article "Lochner's Legacy," which is one of the most cited articles on the case from the last two decades, Sunstein criticized Lochner for preventing the state from using its lawful power 'to help those unable to protect themselves in the marketplace.' Similarly, in his 1998 book The Partial Constitution, Sunstein asserted that the Lochner Court 'made the system of "laissez faire" into a constitutional requirement.'

"But compare those claims with the actual text of the Lochner decision. As Justice Rufus Peckham wrote for the majority, while New York certainly possessed the power to enact valid health and safety regulations, the maximum hours provision of the Bakeshop Act 'is not, within any fair meaning of the term, a health law.' Not only was the baking trade 'not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee,' the limit on working hours involved 'neither the safety, the morals, nor the welfare, of the public.' In other words, 'clean and wholesome bread does not depend on whether the baker works but ten hours per day or only sixty hours a week.'"

Read the article